Free Political Institutions

Their Nature, Essence, and Maintenance

An Abridgment and Rearrangement of Lysander Spooner's "Trial by jury"

EDITED BY

VICTOR YARROS

LONDON

C. W. DANIEL, LTD.

3, Amen Corner, E.C.

1912

CHAPTER 4: OBJECTIONS ANSWERED

The following objections will be made to the doctrines and the evidence presented in the preceding chapters.

1. That it is a maxim of the law that the judges respond to the question of law and juries only to the question of fact.

The answer to this objection is that since Magna Charta judges have had more than six centuries in which to invent and promulgate pretended maxims to suit themselves, and this is one of them. Instead of expressing the law, it expresses nothing but the ambitious and lawless will of the judges themselves and of those whose instruments they are.

2. It will be asked: "Of what use are the justices, if the jurors judge both of law and fact?"

The answer is that they are of use, 1. To assist and enlighten the jurors, if they can, by their advice and information; such advice and informatibn to be received only for what they may chance to be worth in the estimation of the jurors. 2. To do anything that may be necessary in regard to granting appeals and new trials.

3. It is said that it would be absurd that twelve ignorant men should have power to judge of the law, while justices learned in the law should be compelled to sit by and see the law decided erroneously.

One answer to this objection is that the powers of juries are not granted to them on the supposition that they know the law better than the justices, but on the ground that the justices are untrustworthy, that they are exposed to bribes, are fond of authority, and are also the dependent and subservient creatures of the legislature; and that to allow them to dictate the law would not only expose the rights of parties to be sold for money, but would be equivalent to surrendering all the rights of the people unreservedly into the hands of the legislature to be disposed of at its pleasure.

Legislators and judges are necessarily exposed to all the temptations of money, fame, and power to induce them to disregard justice in disputes and sell the rights, and violate the liberties, of the people. Jurors, on the other hand, are exposed to none of these temptations. They are not liable to bribery, for they are not known to the parties until they come into the jury box. They can rarely gain either fame, power, or money by giving erroneous decisions. Their offices are temporary, and they know that, when they shall have executed them, they must return to the people, to hold all their own rights in life subject to the liability of such judgments by their successors. The laws of human nature do not permit the supposition that twelve men, taken by lot from the mass of the people, and acting under such circumstances, will all prove dishonest. It is a supposable case that they may not be sufficiently enlightened to know and do their whole duty in all cases whatsoever; but that they should all prove dishonest is not within the range of probability. A jury therefore insures to us (what no other court does) the first and indispensable requisite in a judicial tribunal-integrity.

4. It is alleged that, if juries are allowed to judge of the law, they decide the law absolutely; that their decision must necessarily stand, be it right or wrong; and that this power of absolute decision would be dangerous in their hands by reason of their ignorance of the law.

One answer is that this power which juries have of judging of the law is not a power of absolute decision in, all cases. For example, it is a power to declare imperatively that a man's property, liberty, or life shall not be taken from him; but it is not a Power to declare imperatively that they shall be taken from him.

Magna Charta does not provide that the judgments of the peers shall be executed, but only that no other than their judgments shall ever be executed, so far as to take a man's goods, rights, or person thereon.

A judgment of the peers may be reviewed and invalidated, and a new trial granted. So that practically a jury has no absolute power to take a man's goods, rights, or person. They have only an absolute veto upon their being taken by the government. The government is not bound to do everything that a jury may adjudge. It is only prohibited from doing anything unless a jury have first adjudged it to be done.

But it will perhaps be said that, if an erroneous judgment of one jury should be reaffirmed by another on a new trial, it must then be executed. But Magna Charta does not command even this (although it might perhaps have been reasonably safe for it to have done so, for if two juries unanimously affirm the same thing, after all the light and aid that judges and lawyers can afford them, that fact probably furnishes as strong a presumption in favor of the correctness of their opinion as can ordinarily be obtained in favor of a judgment by any measures of a practical character for the administration of justice). Still, there is nothing in Magna Charta that compels the execution of even a second judgment of a jury. The only injunction of Magna Charta upon the government as to what it shall do on this point is that it shall "do justice and right." But this leaves the government all power of determining what is justice and right, except that it shall not consider anything as justice and right unless it be something which a jury have sanctioned.

If the government had no alternative but to execute all judgments of a jury indiscriminately, the power of juries would unquestionably be dangerous; for there is no doubt that they may sometimes give hasty and erroneous judgments. But when it is considered that their judgments can be reviewed and new trials granted, this danger is, for all practical purposes, obviated.

If it be said that juries may successively give erroneous judgments, and that new trials cannot be granted indefinitely, the answer is that so far as Magna Charta is concerned there is nothing to prevent the granting of new trials indefinitely, if the judgments of juries are contrary to "justice and right." It does not require any judgment whatever to be executed unless it be concurred in by both court and jury.

Nevertheless, we may, for the sake of the argument suppose the existence of a practical, if not legal, necessity for executing some judgment or other in cases where juries persist in disagreeing with the courts. In such cases, the principle of Magna Charta unquestionably is that the uniform judgments of successive juries shall prevail over the opinion of the court. And the reason of this principle is obvious; it is the will of the country, and not the will of the court or the government that must determine what laws shall be established and enforced; and the concurrent judgments of successive juries given in opposition to all the reasoning which judges and lawyers can offer to the contrary, must necessarily be presumed to be a truer exposition of the will of the country than are the opinions of judges.

But it may be said that, -unless jurors submit to the control of the court in matters of law, they may disagree among themselves and never come to any judgment; and thus justice fail to be done.

Such a case is perhaps possible; but, if possible, it can occur but rarely, because, although one jury may disagree, a succession of juries are not likely to disagree. If such a thing should occur, it would almost certainly be owing to the attempt of the court to mislead them. It is hardly possible that any other cause should be adequate to produce such an effect, because justice comes very near to being a self-evident principle. The mind perceives it almost intuitively. If, in addition to this, the court be uniformly on the side of justice, it is not a reasonable supposition that a succession of juries should disagree about it. If, therefore, a succession of juries do disagree on the law of any case, the presumption is, not that justice fails of being done, but that injustice is prevented-that injustice which would be done if the opinion of the court were suffered to control the jury.

For the sake of the argument, however, it may be admitted to be possible that justice should sometimes fail of being done through disagreements of jurors notwithstanding all the light which judges and lawyers can throw upon the question in issue. If it be asked what provision the trial by jury makes for such cases, the answer is that it makes none. And justice must fail of being done from the want of its being made sufficiently intelligible.

Under the trial by jury, justice can never be done until that justice can be made intelligible or perceptible to the minds of all the jurors; or, at least, until it obtain the voluntary assent of all-an assent which ought not to be given until the justice itself shall have become perceptible to all.

The principles of the trial by jury, then, are these:

1. That, in criminal 'cases, the accused is presumed innocent.

2. That, in civil cases, possession is presumptive pro-of of property.

3. That these presumptions shall be overcome in a court of justice only by evidence the sufficiency of which, and by law the justice of which, are satisfactory to the understanding and consciences of all the jurors.

These are the bases on which the trial by jury places the rights and liberties of every individual.

But some one will say: "If these are the principles of the trial by jury, it is plain that justice must often fail to be done." Admitting, for the sake of the argument, that this may be true, the compensation for it is that positive injustice will also often fail to be done; whereas otherwise it would be one frequently. The very precautions used to prevent injustice being done may often have the effect to prevent justice being done. But are we, therefore, to take no precautions against injustice? By no means, all will agree. The question then arises: Does the trial by jury, as here explained, involve such extreme and unnecessary precautions as to interpose unnecessary obstacles to the doing of justice? Men of different minds may very likely answer this question differently, according as they have more or less confidence in the wisdom and justice of legislators, the integrity and independence of judges, and the intelligence of jurors. This much, however, may be said in favor of these precautions-that the history of the past, as well as our present experience, prove how much injustice may, and certainly will, be done continually and systematically for the want of these precautions. On the other hand, we have no such evidence of how much justice may fail to be done by reason of these precautions. We can determine the former point because the system is in full operation; but we -cannot determine how much justice would fail to be done under the latter system, because we have, in modern times, had no experience of the use of the precautions themselves. In ancient times, when they were nominally in force, such was the tyranny of kings, and such the poverty, ignorance, and the inability of concert and resistance, on the part of the people, that the system had no full or fair operation. Nevertheless, under all these disadvantages, it impressed itself upon the understandings and embedded itself in the hearts of the people so as no other system of civil liberty has ever done.

But this view of the two systems compares only the injustice done, and the justice omitted to be done, in the individual cases adjudged, without looking beyond them, And some persons might, on first thought, argue that, if justice failed of being done under the one system oftener than positive injustice were done under the other, the balance was in favor of the latter system. But such a weighing of the two systems against each other gives no true idea of their comparative merits or demerits; for possibly, in this view alone, the balance would not be very great in favor of either. To compare, or rather to contrast, the two we must consider that under the jury system the failures to do justice would be only rare and exceptional cases, and would be owing either to the intrinsic difficulty of the questions or to the fact that the parties had transacted their business in a manner unintelligible to the jury, and the effect would be confined to the parties interested in the particular suits. No permanent law would be established thereby destructive of the rights of the people in other like cases. But under the, other system, whenever an unjust law is enacted by the legislature, and the judge imposes it upon the jury as authoritative, and they give a judgment in accordance therewith, the authority of the law is thereby established, and the whole people are thus brought under the yoke of that law; because they then understand that the law will be enforced against them in future, if they presume to exercise their rights or refuse to comply with the exactions of the law.

The difference, then, between the two systems is this: Under the one system, a jury, at distant intervals, would fail of enforcing justice in a dark and difficult case, or in consequence of the parties not having transacted their business in an intelligible manner; and the plaintiff would thus fail of obtaining what was rightfully due him/And there the matter would end-for evil, though not for good; for thenceforth parties, warned of the danger of losing their rights, would be careful to transact their business in a more clear manner. Under the other system- the system of legislative and judicial authority-positive injustice is not only done in every suit arising under unjust laws, but the rights of the whole people are struck down by the authority of the laws thus enforced, and a wide-sweeping in,-justice at once put in operation.

But there is another ample and conclusive answer to the argument that justice would often fail to be done, if jurors were allowed to be governed by their own consciences instead of the direction of the justices in matters of law. That answer is this:

Legitimate government can be formed only by the voluntary association of all who contribute to its support. As a voluntary association, it can have for its object only those things in which the members of the association are all agreed. If therefore there be any justice in regard to which all the parties to the government are not agreed, the objects of the association do not extend to it.

If any of the members wish more than this, if they claim to have acquired a more extended knowledge of justice than is common to all, and wish to have their discoveries carried into effect, in reference to themselves, they must either form a separate association for that purpose or be content to wait until they make their views more intelligible to the people at large. They cannot claim or expect that the whole people shall practice the folly of taking on trust their pretended superior knowledge and of committing blindly into their hands all their own interests, liberties, and rights, to be disposed of on principles the justness of which the people themselves cannot comprehend.

A government of the whole, therefore, must necessarily confine itself to the administration of such principles of law as all the people who contribute I to the support of the government can comprehend recognize. And it can be confined within those limits only by allowing the jurors, who represent all the parties to the compact, to judge of the law, and of the justice of the law, in all cases whatsoever. And if any justice be left undone under these circumstances, it is a justice for which the nature of the association does not provide and which the association does not undertake to do.

The people at large, the unlearned and common people, have certainly an indisputable right to associate for the establishment and maintenance of such a government as they themselves wish for the promotion of their own interests and the safety of their own rights without at the same time surrendering all their liberty into the hands of men who, under the pretense of a superior and incomprehensible knowledge of justice, may dispose of such liberty in a manner to suit their own dishonest purpose.

If a government were to be established and supported solely by that portion of the people who lay claim to superior knowledge, there would be some consistency in the saying that the common people should not be received as jurors, with power to judge of the justice of the laws. But so long as the whole people are presumed to be voluntary parties to the government and voluntary contributors to its support, there is no consistency in refusing to any one of them more than to another the right to sit as juror, with full power to decide for himself whether any law that is proposed to be enforced in any particular can be within the objects of the association.

The conclusion, therefore, is that in a government formed by voluntary association, or on the theory of voluntary association and voluntary support, no law can rightfully be enforced by the association in its corporate capacity against the goods, rights, or person of individuals, except it be such as all the members of the association agree that it may enforce. To enforce any other law, to the extent of taking a man's goods, rights, or person, would be making some of the parties to the association accomplices in what they regard as acts of injustice. It would also be making them consent to what they regard as the destruction of their own rights. These are things which no legitimate system or theory of government can require of any of the parties to it. They are inconsistent with the very essence of self-government,

The mode adopted by the trial by jury for ascertaining whether all the parties to the government do approve of a particular law is to take twelve men at random from the whole people and accept their unanimous decision as representing the opinions of the whole. Even this mode is not theoretically accurate, for theoretical accuracy would require that every man who was a party to the government should individually give his consent to the enforcement of the law in every separate case. But such a thing would be impossible in practice. The consent of twelve men is therefore taken instead, with the privilege of appeal and, in case of error found by the appeal court, a new trial to guard against possible mistakes. This system, it is assumed, will ascertain the sense of the whole people with sufficient accuracy for all practical purposes and with as much accuracy as is practicable without too great inconvenience and expense.

5. Another objection that will perhaps be made to allowing jurors to judge of the law and the justice of the law is that the law would be uncertain.

If it is meant that the law would be uncertain to the minds of the people at large, so that they would not know what the juries would sanction and what condemn, and would not therefore know practically what their own rights and liberties were under the law, the objection is thoroughly baseless and false. No system of law that was ever devised could be so entirely intelligible and certain to the minds of the people at large as this.

Compared with it, the complicated systems of law that are compounded of the law of nature, of constitutional grants, of innumerable and incessantly changing legislative enactments, and of countless and contradictory judicial decisions, with no uniform principle of reason or justice running through them, are among the blindest of all the mazes in which unsophisticated minds were ever bewildered and lost. The uncertainty of the law under these systems has become a proverb. So great is this uncertainty that nearly all men, learned as well as unlearned, shun the law as their enemy, instead of resorting to it for protection. They usually go into courts of justice, so called, only as men go into battle-when there is no alternative left for them. And even then they go into them as men go into dark labyrinths and caverns-with no knowledge of their own, but trusting wholly to their guides. -Yet, less fortunate than other adventurers, they can have little confidence even in their guides, for the reason that the guides themselves know little of the mazes they are treading. They know the mode and place of entrance; but what they will meet with on their way, and what will be the time, place, mode, or condition of their exit; whether they will emerge into a prison, or not; whether wholly naked and destitute, or not ; whether with their reputations left to them, or not; and whether in time or eternity-experienced guides rarely venture to predict. Was there ever such fatuity as that of a nation of men madly bent on building up such labyrinths as these for no other purpose than that of exposing all their reputation, property, liberty, and life to the hazards of being lost in them, instead of being content to live in the light of the open day of their own understandings?

If the jurors were to judge of the law, and the justice of law, there would be something like certainty in the administration of justice and in the popular knowledge of the law, and men would govern themselves accordingly. There would be something like certainty, because every man has himself something like definite and clear opinions, and also knows something of the opinions of his neighbors, on matters of justice. And he would know that no statute, unless it were so clearly just as to command the unanimous assent of twelve men, who should be taken at random from the whole community, could be enforced against him. What greater certainty can men require or need as to the laws under which they are to live? If a statute were enacted by the legislature, a man, in order to know what was its true interpretation, and whether it would be enforced, would not be under the necessity of waiting for years until some suit had arisen and been carried through all the stages of judicial proceeding to a final decision. He would need only to use his own reason as to its meaning and its justice, and then talk with his neighbors on the same points. Unless he found them nearly unanimous in their interpretation and approbation of it, he would conclude that juries would not unite in enforcing it, and that it would consequently be a dead letter. And he would be safe in coming to this conclusion.

There would be something like certainty in the administration of justice and in the popular knowledge of the law for the further reason that there would be little legislation, and men's rights would be left to stand almost solely upon the law of nature, or what was once called in England "the common law" (before so much legislation and usurpation had become incorporated into the common law)in other words, upon the principles of natural justice.